In response to an extraordinary demand for seasonal labor, the U.S. Department of Homeland Security (DHS) announced on March 5, 2020 that it will increase the number of H-2B visas available for temporary nonagricultural workers by 35,000 for the second half of fiscal year 2020, allocating 20,000 visas for start dates beginning April 1, and 15,000 visas for start dates beginning May 15. https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers. The increase will be coupled with certain reform measures to promote integrity in the program and combat fraud and abuse.
Background
The Fiscal Year 2020 Further Consolidated Appropriations Act authorizes the DHS Secretary (in consultation with the Secretary of Labor) to release an additional 64,716 H-2B visas for the remainder of fiscal year 2020 should they find that the needs of American businesses cannot be satisfied with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor.
Without such an increase, employers have to compete for H-2B visas under the existing annual limit of 66,000 (H-2B cap), which is divided into two halves: 33,000 for workers needed in the first half of the fiscal year (October 1 – March 31) and 33,000 (plus any unused numbers from the first half of the fiscal year) for workers needed in the second half of the fiscal year (April 1 – September 30). For many employers this is no longer tenable.
The H-2B process has become more challenging with each passing year, as demand for visas continues to dramatically exceed supply. For example, the H-2B cap for the first half of fiscal year 2020 was reached on November 15, 2019, and again on February 18, 2020 for the second half of fiscal year 2020. In addition, within the first 24 hours of the initial three-day filing window for temporary labor certification applications (January 2-4, 2020), employers filed 4,930 applications with the Office of Foreign Labor Certification (OFLC) for more than 87,298 worker positions with an April 1, 2020 or later start date. By the end of the filing window, OFLC had received a total of 5,677 H-2B applications requesting 99,362 worker positions, far more than the 33,000 available.
New Temporary Final Rule
Additional details regarding this increased H-2B allocation will soon be available in a Temporary Final Rule published jointly by DHS and DOL, but the 2019 version gives us a good idea of what to expect. We can anticipate that only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without their requested H-2B workers will be eligible to file a petition. Also, employers will only be allowed to request H-2B returning workers (workers who have been issued an H-2B visa or otherwise granted H-2B status) in one of the last three fiscal years (FY 2017, 2018, or 2019).
Finally, something new this fiscal year is that almost a third of the additional visas (10,000) will be specifically designated for nationals of Guatemala, El Salvador, and Honduras for their help in curbing illegal migration in the region, and for encouraging lawful migration to the United States.
Next Steps
In order to be prepared to file an H-2B petition under the increased cap, employers should discuss the process with immigration counsel and be prepared to argue “irreparable harm” and to provide evidence that their proposed workers qualify as returning workers. Employers should also begin assembling evidence of citizenship for workers from Guatemala, El Salvador, and Honduras, when applicable. Petitions will be processed in the order in which they were received, so it’s a good idea to start getting ready now.
About the Author:
Matt Martinez’s practice focuses on representing employers in all matters of business immigration. He represents companies from a broad spectrum of industries including major healthcare providers, multinational corporations, government agencies, sports franchises, professional athletes in the MLB and NHL, and performers in the entertainment industry. Matt also works closely with companies from diverse industries, including the resort, equine and agricultural industries, to develop guest worker programs that provide temporary and seasonal workers.
